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In a criminal case on Wednesday, a federal judge denied (PDF) a motion to suppress evidence gathered with the help of a stingray—a device that can create a false cellphone tower signal.

The use of a stingray allows authorities to determine a specific mobile phone’s precise location. The technology isn't new and many believe law enforcement agencies nationwide have used them for many years.

In March 2013, we reported on an amicus brief filed in this case by the American Civil Liberties Union. This revealed that the Feds were not completely upfront about using stingrays (also known as “IMSI catchers”) when they asked federal magistrate judges for permission to conduct electronic surveillance.

As a result, Daniel David Rigmaiden (the defendant in the case who is representing himself and has maintained his innocence), had forcefully argued that using a stingray without a warrant is unconstitutional. As a result, he argues that any evidence gathered from it should be suppressed from the record. But the Court ultimately denied Rigmaiden's motion.

Rigmaiden faces dozens of federal accusations of identify theft, mail fraud, and other charges stemming from an alleged fraudulent tax refund ring. Between 2005 and 2008, federal investigators claimed that Rigmaiden and two co-conspirators—Ransom Marion Carter, III (who remains a fugitive) and another unnamed suspect—filed more than 1,900 fake tax returns online. Their work yielded $4 million sent to more than 170 bank accounts.

Privacy, schmivacy

Among other reasons for denial, Judge David Campbell said that Rigmaiden had no “reasonable expectation of privacy” when using a mobile Internet hotspot ("aircard") from Verizon. And ultimately, that's how law enforcement agents tracked him down and arrested him.

Virtually everything about Defendant’s actions related to the apartment was fraudulent. Defendant rented the apartment using the name of a deceased individual, provided a forged California driver’s license to support the false identity, used the driver’s license number from another person in support of the forged license, and provided a forged tax return to support his purported ability to pay rent. Defendant used the laptop he had procured through fraud in the apartment, and connected to the Internet with the aircard purchased with a false identity while using the account with Verizon that he maintained using a false identity. Even the electricity that lighted the apartment and powered the computer and aircard was purchased in a false name. What is more, while living in the apartment under false pretenses, Defendant had $70,000 in cash, a false passport, and a copy of his laptop computer in a storage unit (also rented under false pretenses) ready for a quick escape.

One who so thoroughly immerses himself in layers of false identities should not later be heard to argue that society must recognize as legitimate his expectation of privacy in the location and implements of his fraud. The Court concludes that Defendant’s presence in apartment 1122 was akin to the “burglar plying his trade in a summer cabin during the off season.”

Campbell, in his 52-page decision, also cited the 1976 case, United States v. Miller. That decision later helped influence the third-party doctrine:

The reasoning of Miller applies to the historical records obtained by the United States. They are not the customer’s private papers. Once a customer makes a call, communicates over the Internet, leases an apartment, or uses the services of an alarm company, he has no control over the business record made by the business of that transaction. Instead, the record created is a business record of the provider. The choice to create and store the record is made by the provider, and the provider controls the format, content, and duration of the records it chooses to create and retain. . . . Moreover, these records pertain to transactions to which the companies were a participant. The assignment of a particular cell tower to process a call is made by the cell phone company to facilitate the functioning of its network; the ISP uses the IP address to route Internet communications it transmits; the rental company maintains a rental file for each occupant; and an alarm service independently maintains records of the equipment it installs and maintains. Thus, under Miller, the business records obtained by the government are not protected by the Fourth Amendment.

The judge concluded:

Contrary to Defendant’s arguments, federal courts consistently rely on Smith and Miller to hold that defendants have no reasonable expectation of privacy in historical cell-site data because the defendants voluntarily convey their location information to the cell phone company when they initiate a call and transmit their signal to a nearby cell tower, and because the companies maintain that information in the ordinary course of business.

ACLU wants stingrays to be more explicitly disclosed

In a blog post published Wednesday, ACLU counsel Linda Lye wrote that law enforcement should be compelled to thoroughly disclose the implications of using a stingray device—as this technology can easily pick up other non-suspect mobile phones.

In today’s decision denying the motion to suppress, the judge held that information about how the stingray operates—such as the fact that it scoops up third party data—was merely a “detail of execution which need not be specified.” We respectfully but strongly disagree.

If the government has probable cause to believe a suspect lives at a particular address and wants a search warrant, it obviously needs to tell the court if the address is a 100-unit apartment building and that the government intends to search all 100 units until it finds the suspect. Omitting such information would never be considered a “detail of execution.” Law enforcement should be held to the same standard when they conduct electronic surveillance.

The judge dismissed the significance of the stingray’s impact on third parties because the government deleted and did not review the third-party data after it located Mr. Rigmaiden. But the Fourth Amendment does not include a “no harm, no foul” rule. The violation arises from the fact that the government searched people who are not suspected of any wrongdoing. This is a violation even if the government doesn’t later use the information against those third parties.

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Cyrus Farivar
Cyrus is a Senior Tech Policy Reporter at Ars Technica, and is also a radio producer and author. His latest book, Habeas Data, about the legal cases over the last 50 years that have had an outsized impact on surveillance and privacy law in America, is out now from Melville House. He is based in Oakland, California. Emailcyrus.farivar@arstechnica.com//Twitter@cfarivar

98 Reader Comments

One who so thoroughly immerses himself in layers of false identities should not later be heard to argue that society must recognize as legitimate his expectation of privacy in the location and implements of his fraud. The Court concludes that Defendant’s presence in apartment 1122 was akin to the “burglar plying his trade in a summer cabin during the off season.

What is this judge still doing on the bench when he appears incapable of distinguishing the necessary separation of constitutionality of evidence gathering from presumed or actual guilt of crimes?

Indeed. Given that the court buys into the argument that corporate records are not the customer's property and thus the customer has no 4th Amendment right to privacy in those records, I would say the court is endorsing the very notion of assumed (i.e., false) identity in order to protect one's privacy. I see nothing criminal in that. Is the court/government going to charge me with using a false identity whenever I pay cash?

That said, I find the use of a falsified tax return to obtain the apartment under an assumed identity rather damning given the charges against him :-)

Wow. The judge has ruled (before the end of the trial no less) that because the defendant has gone to extremes to keep his true identity secret, the defendant should have no expectation of privacy.

There is an obvious difference between "keep his true identity secret" and providing faked identification documents when signing legal papers with others (such as his landlord, electricity provider). One is perfectly legal, the other is patently not.

It's not illegal to have aliases, nor pretend you are someone else and open accounts in their name. It becomes illegal when someone defaults and/or causes harm.

I hope you're not thinking that would protect you in a situation like this as it would do nothing to against a stingray type system. That would secure the internals of your traffic, not the externals that the cell network uses to figure out how to get traffic to your handset.

on a side note, GSM SMS messages are already encrypted, do they do double encryption there? For CDMA it would be worthwhile, as none of the traffic is encrypted, including voice and sms.

Wow. The judge has ruled (before the end of the trial no less) that because the defendant has gone to extremes to keep his true identity secret, the defendant should have no expectation of privacy.

The judge stated that because he concealed his identity he no longer benefits from a reasonable expectation of privacy, because in several cases what he had done to conceal his identity is criminal in nature.

This is the kind of thing that can happen when you make a legal gambit like filing a motion to suppress evidence. The judge can come back with a ruling that says, matter-of-factly, that the actions you engaged in were criminal in nature and the evidence generated should not be suppressed. Mr. Rigmaiden attempted to suppress evidence gathered legally through warranted surveillance and then through warranted search and seizure because he says the surveillance should have been warranted as search and seizure due to the nature of the device being surveilled (e.g. a cell phone).

Again, reasonable expectation to privacy in your domicile and curtilage, protection from unwarranted search and seizure. Neither occured in this case. A defendant representing himself before the court filed a spurious motion to dismiss and the ACLU goofed in filing an amicus brief, apparently misunderstanding the issue and perhaps not realizing this guy is not actually an attorney and probably has a lackluster understanding of the relevant details himself.

Any real questions?

Got your snarky hat on, eh?

Do you see any punctuation to suggest my post contained a question?

The judge has rendered judgment on the facts of the case before the closing argument. The judge should at least pretend to be impartial until the end. The case now has grounds for appeal.

Here's the logic hole so big that you can drive a truck through:The Stingray devices are operated by the government, not the carrierOf course the carrier can maintain whatever records as part of its business, but for the feds to put up a tower as part of a non-billing activity, and an activity not with his carrier, then that isn't covered by the business records doctrine.

Perhaps it's time that phones encrypted every single word of every single conversation so that the FBI and CIA cannot eavesdrop on us anymore. I would definitely go for that and my boss would definitely be willing to represent anyone who got in trouble over that in court.

In the U.S. GSM transmissions are encrypted using A5/1 encryption (http://en.wikipedia.org/wiki/A5/1). For the most part, all of your calls on AT&T and T-Mobile are covered by that. They do drop encryption if traffic gets too congested (it reduces overhead), but that's fairly rare. When the encryption is active it covers the internals of the call, such as the voice and sms messages. This also covers the data transmissions on the GSM side, both GPRS/EDGE and UMTS. It does not cover admin messages from tower to handset, such as the IMSI, TMSI, or Timing Advance values, those are all transmitted unencrypted.

If you use CDMA (Sprint - Verizon), well you're fucked. No encryption for you!

Hmmm... according to that Wiki reference, that A5/1 encryption was deliberately made rather weak, at various Western governments' insistence, and today the encryption can be cracked in real-time.

One who so thoroughly immerses himself in layers of false identities should not later be heard to argue that society must recognize as legitimate his expectation of privacy in the location and implements of his fraud. The Court concludes that Defendant’s presence in apartment 1122 was akin to the “burglar plying his trade in a summer cabin during the off season.

What is this judge still doing on the bench when he appears incapable of distinguishing the necessary separation of constitutionality of evidence gathering from presumed or actual guilt of crimes?

Indeed. Given that the court buys into the argument that corporate records are not the customer's property and thus the customer has no 4th Amendment right to privacy in those records, I would say the court is endorsing the very notion of assumed (i.e., false) identity in order to protect one's privacy. I see nothing criminal in that. Is the court/government going to charge me with using a false identity whenever I pay cash?

That said, I find the use of a falsified tax return to obtain the apartment under an assumed identity rather damning given the charges against him :-)

As far as I know (IANAL):

Simply using a false identity is not in itself illegal.But using a false identity to commit a crime, or to facilitate one, is.

Your phone sends out it's IMSI on a pretty regular basis. I don't think you have a reasonable expectation of privacy from the government or anyone else capturing the IMSI's that are in use in an area any more than you should expect that others won't listen if you talk loudly and openly in a public place.

A more reasonable approach to privacy protections would be to require that the cell phone companies not release who and IMSI is associated with unless they are presented with a warrant. That would provide only limited protection since with a reasonable effort you could be followed and they could determine what IMSI or IMSIs are always in use at your location, but it requires a little more effort.

It has shorter range, but wifi on phones is becoming commonplace even in cheaper pay as you go phones. Your phone sends out it's MAC address in the 802.11 header. You can capture it using any wireless adapter.

It is so simple to do with tools commonly available I think an expectation of privacy is unreasonable. Your wifi devices are already receiving such data, they are just discarding it rather than making use of it.

You always have a reasonable expectation of privacy from law enforcement. Maybe not from civilians like you and I but we do from those we charge with enforcing our laws and protecting our constitutional rights.

Now, all I need is a reasonable expectation of privacy from the corporate sector, and I'll feel reasonably secure...

Perhaps it's time that phones encrypted every single word of every single conversation so that the FBI and CIA cannot eavesdrop on us anymore. I would definitely go for that and my boss would definitely be willing to represent anyone who got in trouble over that in court.

In the U.S. GSM transmissions are encrypted using A5/1 encryption (http://en.wikipedia.org/wiki/A5/1). For the most part, all of your calls on AT&T and T-Mobile are covered by that. They do drop encryption if traffic gets too congested (it reduces overhead), but that's fairly rare. When the encryption is active it covers the internals of the call, such as the voice and sms messages. This also covers the data transmissions on the GSM side, both GPRS/EDGE and UMTS. It does not cover admin messages from tower to handset, such as the IMSI, TMSI, or Timing Advance values, those are all transmitted unencrypted.

If you use CDMA (Sprint - Verizon), well you're fucked. No encryption for you!

Hmmm... according to that Wiki reference, that A5/1 encryption was deliberately made rather weak, at various Western governments' insistence, and today the encryption can be cracked in real-time.

This "Daniel David Rigmaiden", IF that's who he REALLY is, would appear to be quite the accomplished ConMan.

It leads me to wonder: Might "Ringmaiden" simply be yet another alias, presented to conceal the True Identity Of One ..... ALAN COOPER!!! In fact The very same Alan Cooper who, it is to be revealed, deceived Steele & Hansmier into taking a fall & who himself masterminded the convoluted concentric rings of conspiracy that form ..... Prenda Law ........ Dah ... Dah......DAAAAaaaa

(And if you're not Alan Cooper I happen to know of a few fellas that could really use your services.)

What is troublesome is that the government feels that if it *might* be available in a record kept by the service provider, then the government can use any means to obtain that information. This seems like a 70 degree slope coated in Teflon and silicone lubricants. Miller applies to obtaining records after the fact from the service provider via subpoena or request. Stingray is a man in the middle that is eavesdropping on a subject as well as dozens of others in realtime. Quite a dangerous way to stretch precedent, even if the defendant is guilty of being such scum.

Will Miller next be stretched to allow the government to to break into the telco's or isp's offices in order to get these records? After all no one has any expectation of privacy over them. Would the government also be authorized to enter a suspects home in order to look through their bills and other copies of such records? After all, this is data the government could get without a warrant anyways...

...

That, and the very valid concerns that the opposing council brought up on third-party innocents having their data scooped and searched too.

This just further illustrates that there are still too many judges sitting on the bench currently that do not have the necessary understanding of technology and the ways it is being mobilized against citizens (innocent or guilty) to be allowed to make precedent-setting rulings. We need a check to balance the judicial system for when judges are displaying an incapability of understanding the full scope of consequences of their rulings.

...

There was a federal surveillance warrant issued for the accused. So this isn't just cops cruising the streets with a stingray set to catch all potentially illegal traffic. So right out the gate there is little legal standing to any of this. More directly as has been made clear by the police they dump all the data not pertaining to the target of the warrant and do so for very good reason (even from a perspective of cops who want to get hte bad guy more than protect your rights). You see evidence has very stringent rules and if you do not follow those rules it gets tossed out. A big one there is illegal search and seizure, if they do not have a warrant for that evidence it and ALL of the evidence cascading from it is inadmissible and pretty much torpedoes their own case. In other words you are already protected from this it does not matter if they have access because without a warrant that access is more harm than good. No investigator worth a damn wants to have it even be arguable that he has seen data that he didn't have a warrant for because it calls into question all further evidence as potentially gathered due to suspicions fomented by the initial illegal search. Once that happens a judge can rule all of that evidence moot. Thus yes I do believe the cops when they say they delete everything not within the warrant and no I don't trust the cops as far as I can throw them but they know as well as anyone that loose evidence handling sets bad guys free and they don't like that one bit.

What is troublesome is that the government feels that if it *might* be available in a record kept by the service provider, then the government can use any means to obtain that information. This seems like a 70 degree slope coated in Teflon and silicone lubricants. Miller applies to obtaining records after the fact from the service provider via subpoena or request. Stingray is a man in the middle that is eavesdropping on a subject as well as dozens of others in realtime. Quite a dangerous way to stretch precedent, even if the defendant is guilty of being such scum.

Will Miller next be stretched to allow the government to to break into the telco's or isp's offices in order to get these records? After all no one has any expectation of privacy over them. Would the government also be authorized to enter a suspects home in order to look through their bills and other copier of such records? After all, this is data the government could get without a warrant anyways...

...

That, and the very valid concerns that the opposing council brought up on third-party innocents having their data scooped and searched too.

This just further illustrates that there are still too many judges sitting on the bench currently that do not have the necessary understanding of technology and the ways it is being mobilized against citizens (innocent or guilty) to be allowed to make precedent-setting rulings. We need a check to balance the judicial system for when judges are displaying an incapability of understanding the full scope of consequences of their rulings.

...

You see evidence has very stringent rules and if you do not follow those rules it gets tossed out. A big one there is illegal search and seizure, if they do not have a warrant for that evidence it and ALL of the evidence cascading from it is inadmissible and pretty much torpedoes their own case. In other words you are already protected from this it does not matter if they have access because without a warrant that access is more harm than good. No investigator worth a damn wants to have it even be arguable that he has seen data that he didn't have a warrant for because it calls into question all further evidence as potentially gathered due to suspicions fomented by the initial illegal search. Once that happens a judge can rule all of that evidence moot. Thus yes I do believe the cops when they say they delete everything not within the warrant and no I don't trust the cops as far as I can throw them but they know as well as anyone that loose evidence handling sets bad guys free and they don't like that one bit.

Not really the same thing though. The text messages are effectively found on the defendants person in the process of arrest. It is an area where the courts are still establishing precedent absent legislation to specific laws governing search and seizure of networked devices like we got with the wire tap act regarding telephones. The courts do lag behind technology, they largely have too as the courts can not take pre-emptive action with precident there must be a case where it can be decided and it is to be decided based on past similar cases. Do you have a reasonable expectation of privacy if you carry a notebook on your person detailing your crimes if you are arrested? No of course not. To the courts it is the same thing. Digital storage does not make information automatically private until legislators craft laws saying so at least. Until then digital will be compared to the closest non-digital analog.

Using GPS tracking is once more questionable but once again this was not used to dragnet catch everyone who was at a location at a time but to track down a person the police had a warrant for. What I am saying is that fears of authorities vacuuming up data over the airwaves and without warrant searching it for evidence of criminal activity is protected and neither of those cases comes close to countering that.

This is not to say such vagaries are good. It would be great if our legislators could enact common sense privacy and search and seizure protections over digital and wireless technologies. But enacting legislation no less common sense legislation is not something they excel at at this point. Until then I take comfort in knowing that the strictures on admissible evidence are still quite strong. THere are big holes the patriot act nonsense for instance or after the fact warrants for teh stuff the NSA hoovers upt o fight terrorism. those things are scary. Authorities with a warrant being able to track wireless traffic? No scarier than warranted wire taps.

Not really the same thing though. The text messages are effectively found on the defendants person in the process of arrest. It is an area where the courts are still establishing precedent absent legislation to specific laws governing search and seizure of networked devices like we got with the wire tap act regarding telephones. The courts do lag behind technology, they largely have too as the courts can not take pre-emptive action with precident there must be a case where it can be decided and it is to be decided based on past similar cases. Do you have a reasonable expectation of privacy if you carry a notebook on your person detailing your crimes if you are arrested? No of course not. To the courts it is the same thing. Digital storage does not make information automatically private until legislators craft laws saying so at least. Until then digital will be compared to the closest non-digital analog.

Using GPS tracking is once more questionable but once again this was not used to dragnet catch everyone who was at a location at a time but to track down a person the police had a warrant for. What I am saying is that fears of authorities vacuuming up data over the airwaves and without warrant searching it for evidence of criminal activity is protected and neither of those cases comes close to countering that.

This is not to say such vagaries are good. It would be great if our legislators could enact common sense privacy and search and seizure protections over digital and wireless technologies. But enacting legislation no less common sense legislation is not something they excel at at this point. Until then I take comfort in knowing that the strictures on admissible evidence are still quite strong. THere are big holes the patriot act nonsense for instance or after the fact warrants for teh stuff the NSA hoovers upt o fight terrorism. those things are scary. Authorities with a warrant being able to track wireless traffic? No scarier than warranted wire taps.

Yeah, we've strayed off the path a little but I was really only addressing the "evidence acquisition has stringent rules that must be followed to be admissible" train of thought...